Newnham v Ramsay - [1991] HCATrans 360

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1991
B e t w e e n -
NOEL RONALD NEWNHAM

Applicant

and
DAMIEN JOHN RAMSAY

Respondent

Application for special
leave to appeal

BRENNAN J
DAWSON J

MCHUGH J

Newnham

13/12/91

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 10.09 AM

MR R.I. HANGER, QC:

May it please the Court, I appear with

my learned friend, DR C.G.S.L. JENSEN. (instructed
by K.M. O'Shea)

MR P.R. DUTNEY, QC:

I appear with MR P.J. McHUGH for the

respondent. (instructed by Bailey & Bailey)

BRENNAN J: Thank you, Mr Hanger.

MR HANGER:

If Your Honour pleases, the case raises the

issue of the position of a police constable who is
in effect on probation under the terms of the
Police Act, Queensland, and the question of whether
he is entitled to a hearing before being

discharged. The Full Court by a majority on the
interpretation of the Act held that he was not
entitled, and we adopt the reasoning of
Mr Justice Williams, the dissenting judge.
The provisions of section 10 are, in our

respectful submission, clear. I think the Court
has the Police Act before it.

BRENNAN J:

We will have shortly, and we have it, at any

event, in the appeal books, Mr Hanger.

MR HANGER:

We refer to the first proviso which is relevant

here:
Provided that every person who is

appointed to be a constable shall be appointed
in the first instance for one year only and
if, at the expiration of that year, the
Commissioner is of the opinion that
circumstances warrant it, may be appointed for
a further period of six months -

and that happened in this case -

and may, if the Commissioner considers he is
unsuitable for any reason whatsoever to
continue in the Police Force, be discharged by
the Commissioner at any time before the
expiration of one year -

or the extended period of six months -
and without assigning any reason other than
that the Commissioner considers he is
unsuitable to continue in the Police Force.

Our submission is that the terms of that section
are so wide, particularly when considered in
conjunction with the balance of the Act, that there
is a legislative intention manifest to deprive him
of any right to a hearing before he be dismissed.

Newnham

13/12/91

DAWSON J: But the commissioner has got to decide that he is

unsuitable, does he not?

MR HANGER:

Yes, Your Honour.

DAWSON J: That sets a standard, does it not?

MR HANGER:

Your Honour, Mr Justice Williams said, and we

would adopt it, that it sets really a standard of
such a broad nature that it is such that it is
almost meaningless.

DAWSON J: But it is a statutory requirement, and why should

we decide that on the face of that statutory

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newnham v Ramsay

Details

AGLC: Newnham v Ramsay [1991] HCATrans 360
Case: [1991] HCATrans 360
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, Newnham, against the respondent, Ramsay. The dispute centred on the entitlement of a police constable, appointed under the terms of the *Police Act* (Qld), to a hearing before being discharged from the Police Force. The Full Court of the Supreme Court of Queensland had, by a majority, held that such a constable was not entitled to a hearing.

The primary legal issue before the High Court was the interpretation of section 10 of the *Police Act* (Qld). Specifically, the Court was required to determine whether the provisions of this section, which allowed for the discharge of a constable within their first year of appointment (or an extended six-month period) if the Commissioner considered them unsuitable to continue in the Police Force, implicitly excluded the rules of natural justice, thereby depriving the constable of any right to a hearing.

The applicant argued that the terms of section 10 were clear and, when considered with the balance of the Act, indicated a legislative intention to exclude the right to a hearing. The applicant contended that the broad discretion afforded to the Commissioner, who was not required to assign any reason for the discharge other than unsuitability, meant that the requirement for the Commissioner to form an opinion on suitability did not impose a standard that would necessitate a hearing. The applicant referred to principles from *Ridge v Baldwin* and *Coutts v The Commonwealth* to support the proposition that where no reasons are required for a decision, there may be no obligation to provide a hearing. The Court was asked to adopt the reasoning of the dissenting judge in the Full Court, who had found in favour of the applicant.

Orders